May 20, 2010

Rand Paul is coming under attack for things he said about the Civil Rights Act of 1964, which outlawed race discrimination in privately owned restaurants and hotels. He's also being defended, of course, notably here, by Allahpundit:

I don’t like to go back-to-back on the same subject but a hot rumor hit Twitter as the last post was being published that Paul told NPR he would have voted against the 1964 CRA. (Much like certain Democrats who are still serving in the Senate did.) As you’ll see, it’s not true. The reporter, smelling blood, badgers him about it, but Paul never quite gives him a straight answer. And he qualifies his response with enough virtue — he opposes institutional racism, would have marched with MLK, likes a lot of what was in the CRA — that there’s really no wound inflicted here. His reservations about the law have to do not with the ends but with the means of federal compulsion; he wants business owners to serve everyone but clearly prefers using boycotts and local laws to pressure them. It’s not a question of being pro- or anti-discrimination, in other words, it’s a question of how federalism and civil-rights enforcement mesh. The left’s going to give him plenty of grief for that — expect questions soon about whether he would have voted to ratify the Fourteenth Amendment — but the “closet Klansman” narrative that NPR’s going for here is D.O.A.

It's true that Rand made many expressions of his opposition to race discrimination in what was a hearty effort to blunt the effect of what he was saying, but it is not true that his "reservations" were limited to federalism concerns. (As to federalism, there was an argument, rejected long ago by the Supreme Court, that the Constitution did not empower Congress to regulate in this area.)

Rand was also expressing the view that owners of private businesses have a right to decide whom they will serve. Such a right would not run counter to the 14th Amendment, because the 14th Amendment only protects individuals from the actions of the state and privately owned restaurants and hotels are not the state. If you want a legal requirement that these businesses treat people equally, you need to pass a statute, which is why the Civil Rights Act of 1964 was passed. And that statute was susceptible to arguments it violated the right of the business owners to do what they wanted with their own property. When the Supreme Court upheld the Civil Rights Act of 1964, not only did it need to find an enumerated power for Congress to act, but it also had to deal with the argument that the Act violated the Due Process Clause. Rand's statement harkened back to both of those old arguments.

I don’t like the idea of telling private business owners—I abhor racism. I think it’s a bad business decision to exclude anybody from your restaurant—but, at the same time, I do believe in private ownership. But I absolutely think there should be no discrimination in anything that gets any public funding, and that’s most of what I think the Civil Rights Act was about in my mind....

I would not go to that Woolworths, and I would stand up in my community and say that it is abhorrent, um, but, the hard part—and this is the hard part about believing in freedom—is, if you believe in the First Amendment, for example—you have too, for example, most good defenders of the First Amendment will believe in abhorrent groups standing up and saying awful things. . . . It’s the same way with other behaviors. In a free society, we will tolerate boorish people, who have abhorrent behavior.

He likens private property rights to free speech rights. If you care about free speech rights, you defend even the people who say horrible things — Nazis, the KKK, etc. That's standard constitutional law doctrine. In Rand's view — and in the view of many libertarians — property rights work the same way. So you could have this horrible racist restauranteur who excluded black people, and the government would have to leave him alone, just as the government couldn't do anything about it if a white person had a dinner party at his house and only invited his white friends.

***

A few years ago, I was at a conference with libertarians, and I was confronted with exactly this point of view. I expressed my concern that they were putting an extreme and abstract idea above things that really matter in the world. I challenged them — in what I thought was a friendly conversation — to explain to me how I could know that their commitment to the extreme abstraction did not, in fact, have an origin in racism. Which came first, the proud defense of private property or the shameful prejudices that polite people don't admit to anymore?

I am struck -- you may think it is absurd for me to be suddenly struck by this -- but I am struck by how deeply and seriously libertarians and conservatives believe in their ideas. I'm used to the way lefties and liberals take themselves seriously and how deeply they believe. Me, I find true believers strange and -- if they have power -- frightening.

I appreciate libertarians up to a point, but the extreme ones are missing something that is needed if you are to be trusted with power. I'm glad Rand Paul is on the scene, but I'm going to hold him to his own statements, and it is plain to me that Allahpundit has misunderstood or misrepresented what he said. I'm certainly not saying he's a racist, but he seems to support a legal position that would place racist private businesses beyond the power of anti-discrimination statutes.

UPDATE: Rand Paul goes on the Laura Ingraham show and, with the help of her very supportive questions, finally gets around to saying that if he were in Congress in 1964, he would have voted for the Civil Rights Act. Here's audio of the entire segment. Here's a text summary.

Althouse’s point is that Paul opposes any government interference in how someone runs their business, which would be strong form laissez faire; I assumed, because he danced around NPR’s questions and because this was obviously about to become a major headache for him, that he was taking the more palatable, weaker form position that it’s more acceptable for state and local agencies to act against discrimination but that the feds should stay out. (As it turned out, he now says having the feds interfere is fine.) That’s why I brought federalism into it, and that’s why I thought the Fourteenth Amendment would eventually end up in the discussion. If Paul doesn’t want the feds meddling in private businesses to protect minority rights, does he at least support letting them meddle with state governments that refuse to do so?

"Meddle" in what way? Require the states to legislate? Under New York v. United States, that is more of a constitutional problem than directly regulating. Do you mean putting conditions on accepting federal funds? That could be done most easily. If you mean using §5 of the 14th Amendment, that shouldn't work, because the states are not violating rights by failing to control the choices private citizens that are not, in fact, rights violations. It's hard to believe Paul would support these things (even before he conceded that he'd vote for the CRA of 1964).

I'm certainly not saying he's a racist, but he seems to support a legal position that would place racist private businesses beyond the power of anti-discrimination statutes.

Yes, this is freedom. It involves letting people do things you don't agree with. As long as force or fraud is not involved, people should be free.

But most people do not want liberty. They want people to be free to do things "they" agree with.

Rand hss the right approach. Gov't should grant all persons equal protection and rights. Individuals should be free to discriminate [as we all do on virtually every decision we make in one way or another]. Remarkable, taking a strong position on liberty for private persons and entities is a radical issue.

Amazingly, gov't now discriminates the most with its vast panoply of preferences for favored victim classes.

Rand may have his biggest problems aon the abortion issue. He thinks life begins at conception and all abortions should be banned. It's a principled position, but not popular among a very large percentage of the population.

Dr. Althouse: I'm certainly not saying he's a racist, but he seems to support a legal position that would place racist private businesses beyond the power of anti-discrimination statutes.

Yes, he does seem to. Yes, that's the Libertarian position. No, it's not especially abstract. Yes, it affects other things besides the question of race in private business. Yes, I agree with it wholeheartedly. Yes, I think the Supreme Court erred in 1964 in upholding the statute, both because you cannot change people's minds by either legislative or judicial fiat, and due to the obvious unintended consequences of such a broad interpretation of the commerce clause, which, by now, has become the legislature's on-stop shop for doing whatever they damn well please.

1. Just a friendly conversation here - but how can I know that you aren't a racist when you defend free speech for racists?

2. You picked a really bad year to bring up the argument that "what really matters in the world" is individual racist business owners rather than a rapacious federal government that wants to control our most intimate economic decisions.

Paul's argument is not novel. In fact, slave owners and Jim Crow advocates (and now Paul) framed defenses of discrimination as "liberty" arguments. There was a time that the Supreme Court accepted those arguments. It does not anymore.

On the federalism issue, I agree that Hot Air misstated this point. In fact, Paul really had not thought about the issue too much. But, the most disturbing part of the "local government" argument with respect to the Civil Rights Act of 1964 is its ahistorical nature. State and local governments not only ignored violations of civil rights, they also facilitated, mandated and engaged in these violations. For conservatives to advocate local reforms ignores this history (it also ignores that fact that local laws also protect civil rights).

I appreciate Paul's argument. But as a libertarian, he should appreciate the responses.

Mr. Paul defined the choice to be made. If private property permits a certain lattitude in dealing or not dealing with a minority or any group/class of people who you don't want to then you can. If you don't agree with Mr. Paul, then you don't support of vote for him.

It is instructive that George Wallace said pretty much the same thing and that if Mr. Paul elected to put up a "whites only" and "coloreds only" sign over a drinking fountain in his offce, well then so be it.

I can understand (not support but understand) his view and I or anyone can vote for him or not.

If this is indicative of the intellectual depth of the Tea Party and their values, then democrats have nothing to worry about and republicans have more to worry about than Solomon.

Complicated because I think it's undeniable that white folks (and most libertarians are white) have not experienced the visceral pain that even private discrimination can cause. And in arguing over this issue, unfortunately (or not), emotion and experience carry probably more weight than they should.

Fundamentally, I agree with Paul (both on what the law should permit and on how respectable citizens should respond to businesses that discriminate on the basis of race). But I'm quiet about it, as my past is a mixed bag and my motives will undoubtedly be questioned, and it's impossible for me to summarize my experiences in an appropriate soundbite that would mollify my detractors:

- I grew up in a racially mixed community where even our large church was probably 40% minority (largely African American and Southeast Asian), which was a rarity in this country in the 1970s and 80s.

- I attended a private southern university with a racist past, a choice that at the time seemed the best of the options available to me but a decision I now deeply regret.

- I've spent half my life abroad (in a single country), where, despite being fluent in the language and fully integrated into society in many ways, I repeatedly found myself the victim of discrimination, particularly in housing. (I was a racial minority in that country.) I certainly didn't like it, but I sucked it up and made life work. The thought never occurred to me that I should force myself or my business on somebody who didn't want to deal with me. Why would I want to deal with an a$$hole like that anyway?

For many (including Ann?), the second fact automatically disqualifies my views on this issue. But in light of my other lived experiences, is that fair? I dunno. I like to think that, particularly given my own experience of discrimination, my views are more informed and honestly held than is the case of most libertarians (or even of most diversity proponents), but maybe I'm just self-deluded.

"I appreciate libertarians up to a point, but the extreme ones are missing something that is needed if you are to be trusted with power."

As a libertarian, you don't "trust people with power". In a republic, the government doesn't have power. It has permission to perform some functions that are clearly expressed in a written constitution. You know that. And no, it isn't that "the people have the power", that's democratic despotism.

It's not about who has the power, but simply a policy of non-intervention. So in reality, it would be lack of power for all. I dont have the power to interfere with your life, nor you mine. And the government hasn't the power to do so either.

End of story. A government with power will only grow in power, at the expense of our liberties.

You know, that's water under the bridge. And you'll never get the horse of federalism back in the barn when the door's open. The milk of states rights has been spilt and you can't unscramble that egg.

Is it okay not to care about this stuff when we have a black (well, half black) president, a black AG, a female SecState (a "real" one, not like Condi), a hispanic SC judge, and god knows what else?

We might be able to flip back the Obama Eurosocialism Health Care Theft Act. We might even be able to get a portion of our Social Security into private accounts. We'll never get any more robust form of federalism back.

Seriously, it's like Title IX - girls have taken over the Uni's, does TIX matter any more?

At some point arguments become wishful thinking. Paul's argument is pseudo-legal reasoning because we know what the law is on this question: it's been passed by Congress and approved by the Supreme Court, and the law of the land for nearly 50 years.

You see lawyers do this sometimes in court-- the judge has made a ruling, it's time to move on, but the lawyer won't let it go. The lawyer that keeps arguing after the matter has been ruled on is a poor lawyer.

I am very surprised by your argument,"I challenged them [...] to explain to me how I could know that their commitment to the extreme abstraction did not, in fact, have an origin in racism."

What is the relevance of the motivation behind a principle to the principle's correctness? It's entirely possible to be an advocate of a moral idea (propert rights) for odious reasons (racial hatred). Whatever happened to debating ideas strictly on their merit?

"Yes, I think the Supreme Court erred in 1964 in upholding the statute, both because you cannot change people's minds by either legislative or judicial fiat, and due to the obvious unintended consequences of such a broad interpretation of the commerce clause, which, by now, has become the legislature's on-stop shop for doing whatever they damn well please. "

Actually LAW can and is a moral teacher. Arkes often says there were polls before the Civil Rights Act if it was ok for business to discriminate against balcks. Pre 64 big no's in the North Big yes in the South. In just a few years after the pasage of the act those numbers had already decreased in the South.

We saw something similar to the issuse of Gay marriage in Mass. Before the Supreme Court said yes there was a right to gay marriage a good number opposed it. But once for an body like the State Supreme Court ruled in just a few years those numbers had dramatically changed.

People say "you can't legislate morality" and yes to a certain extent you cannot. However it isfolly to take that to a extreme. The Law is a moral teacher and it does have an affect

What is the relevance of the motivation behind a principle to the principle's correctness? .

She addresses this in her post.

I expressed my concern that they were putting an extreme and abstract idea above things that really matter in the world. I challenged them — in what I thought was a friendly conversation — to explain to me how I could know that their commitment to the extreme abstraction did not, in fact, have an origin in racism. .

They are saying that we must allow injurious prejudice, bigotry and discrimination in order to protect an abstract concept they've elevated above other moral values.

I think that in some senses, Rand Paul is correct. Private property ownership brings on some rights such as the right to discriminate. Private clubs do it all the time.

But a business, while privately owned, is not private property in the sense that it is soley under the control of the owner. A business is by its nature a hybrid beast that deals with the public under a contractual basis (sells things at a given price, the buyer completes the contract by buying or negotiating) and therefore has obligations to that unwritten (but often regulated) contract including allowing the public to enter into negotiations.

Such entities are also under the protection and regulation of the public tax supported state in a way that is different from private organizations as they are "open to the public" even if the initial offering is to, say, whites only.

It is poor public policy to exclude persons from a business on the basis of race, etc. (and probably bad business these days) and the 1964 Civil Rights Act reflects this. A public business is not pure private property.

Me, I'm more of a squish. The state forcibly resegregated private enterprises in the 1880s and 1890s, which set into stone those practices. State action (on the federal level) was reasonable or even necessary to break that logjam-- hence the Civil Rights Act of 1964.

But it was a large infringement on liberty. Now that racism is no longer the norm, I would repeal it. Racism is bad business practice, and social norms are now enough to limit it.

Is it a huge fight I'd pick? Possibly, and that's why if I were an elected politician, I'd avoid it and keep on renewing these acts. Don't open up the issue unnecessarily.

Why does that qualification always sound like just the opposite is being said.

I think I agree with Rand, the law was designed and functions as much to restrict freedom of some as it does to free others. It's application has been racist in that primarily only whites have been forced to be race neutral, while virtually everyone else has been, not only discriminatory, but have had their race exclusivity treated like a right and a virtue, despite the fact that it has only racism and not freedom as it's motivation. As a society we have honored racism, as long as it's not whites doing it.

"If you're certainly not saying that Paul is a racist, then what was all that crapola about making the libertarians at the conference prove to you that they weren't racist?"

I didn't make or even ask them to prove it. I asked the philosophically apt question how do I know they are not racists. Your questions should be: How could they have given a good answer to my question?

Here's what would have satisfied me: You know, I have to admit that there is no way for you to know I am not in some way down deep a racist, and I have thought about whether my love for ideas that favor white people and burden black people could have begun as a feeling of aversion or hostility to black people. If I thought that was true, I would do something about it. And I agree with you that we should examine our philosophical beliefs to try to understand what emotional needs they may fulfill for us. I mean, I'm sure you don't just assume you're not a racist in some way, maybe completely unconscious. I think it's actually quite important that we try to make it conscious if it's really there, so we can honestly look at it and contemplate what we can do about it.

Part of Rand Paul's central point is that in a free society there are other ways to deal with abhorent behaviors--like racism--than through government compulsion.

The process of working racist behaviors out of our communities through non-governmental processes--like boycotts, speech, social pressure--would produce a genuine repudiation of racism that was founded in our personal beliefs and actions.

Would it be difficult? Sure, but racism has a long history and deep roots in human behavior.

But doing it through private behaviors would have avoided the moral and political abominations and the distortions and fracturing of community that affirmative action has created.

The Irish, the Eastern Europeans, the Jews, the Italians, etc. all got into full participation in the society in a much more complete way than has occurred with Aftican-Americans.

That is becasue the route of change for this latter group was government coercion rather than private action.

As Ann aptly demonstrates here, sometimes the line between being provocative and being obtuse becomes a bit blurred.

The Federal government has the right to regulate private property for a proper end in the arena of racial discrimination. Let's not stop with who a business should be forced to cater to. Let's go further and mandate that 30% of your purchases be made from minority-owned businesses. After all, we are about ending racism here and certainly customer racism is just as pernicious as supplier racism, with such a requirement bearing both a rational relationship to the 14th and within the power to regulate interstate commerce. And can I be sure that anyone who opposes my proposed statute really isn't defending racism?

Everyone discriminates. Ann Althouse discriminates, I discriminate, Rand Paul discriminates. All the decisions we make are based on discrimination against what we don't like. We don't invite annoying people to parties, we don't hang out with the teenagers next door, we don't go to doctor A because doctor B's kid is friends with our kid, whatever. All those decisions are based on us discriminating against annoying people, teenagers, and certain doctors.

The CRA eliminates some people's freedom to discriminate in some cases. If it forced me to invite the annoying person or hang out with the teenagers or go to a certain doctor, we'd all agree that it's a bad law.

The problem is that this country has a history of racism, and racism is bad. But racism is just another form of discrimination, no worse, inherently, than the examples above or discriminating against people based on their hair color, eye color, height, or whatever.

The beauty of the free market is that any discrimination against someone except measurements of their productivity is bad for business. If I detest red-haired people and refuse to hire them or sell to them, my business with suffer, and the guy up the street who hires and sells based on ability and cash balance will eventually run me out of business.

Same thing with those who discriminate against blacks. The CRA did not do us any favors--it introduced government coercion to force people who didn't like blacks to patronize them. They would have gone out of business, been socially marginalized, and made examples of. Instead, they stayed in business, and just got more angry with blacks and the government. Thus I'd argue that CRA was not only anti-freedom, it was a bad long-term solution to the problem of racism.

"(As to federalism, there was an argument, rejected long ago by the Supreme Court, that the Constitution did not empower Congress to regulate in this area.)"

So what? Is the Supreme Court the new Moses, bringing us sacred tables from Mount Sinai? The arguments have to be convincing; whether they were uttered by the majority in a Supreme Court decision should not matter.

Ann Althouse when you write, . Me, I find true believers strange and -- if they have power -- frightening, I find myself in agreement.The ideal, or perfect, is often the enemy of the good, as my Voltaire side pointed out long ago. That I can exclude individuals from my business for certain behavioral traits- bouncing checks for example, seems my right, but to exclude for racial traits seems not a right but racist.

What Rand Paul said is impolitic. The CRA is sacrosanct. It's like the Roe v. Wade decision. Many have made the argument that a right to privacy does not exist in the constitution, therefore Roe v. Wade was wrongly decided. Heck, even Justice Ruth Bader Ginsburg thinks Roe v. Wade shouldn't have created privacy rights by judicial fiat, but instead wait for legislation to do that.

But if you want to avoid the "extreme pro-life" label, you have to support Roe v. Wade. Likewise, if you want to avoid being labelled as someone who wants to return to Jim Crow, you have to support the CRA. A better battle would have been to contend that affirmative action & quotas were a product of CRA, which you would have had serious problems with.

He likens private property rights to free speech rights. If you care about free speech rights, you defend even the people who say horrible things — Nazis, the KKK, etc. That's standard constitutional law doctrine. In Rand's view — and in the view of many libertarians — property rights work the same way. So you could have this horrible racist restauranteur who excluded black people, and the government would have to leave him alone, just as the government couldn't do anything about it if a white person had a dinner party at his house and only invited his white friends

EXACTLY correct. This is a very simple concept. The government under our constitution is supposed to not interfere in free speech and in personal property rights.

Public property is a horse of another color and they can put rules and laws in place there.

If I have an apartment building or rental properties I should the sole arbiter of who I want to rent my personal property to.

When I had a restaurant/deli, I reserved the right to refuse service to anyone and posted it on the wall ...legally. Would I do it on the basis of race. Of course not. That would not be right or moral. But it should be the property owners decision.

Bars and restaurants should be able to allow smoking if they want. If I don't like it, I can take my business elsewhere.

The list goes on and on with the intrusions of government into our freedoms.

Libertarians got mad when you told them to prove they're not racists? That's weird. Whatever could they have gotten mad about? It's not like there's a history of malicious accusations of racism used to crush individual liberty or anything.

"I'm certainly not saying he's a racist, but he seems to support a legal position that would place racist private businesses beyond the power of anti-discrimination statutes."

You mean beyond the power of federal anti-discrimination statutes. The CRA also raised issues about the limits of federal power, not just the limits of the police power. (But, yes, I understand the libertarian private property argument is one for restraining the exercise of the State's police power.)

To turn your question back to you--you are a robust defender of free speech. How do we know that your defense of the right of racists to spout racist speech isn't really driven by some latent racism in you?

It's an unfair attack to suggest someone is hiding latent racism based only on their taking a stauncher view than you on a certain civil right.

This freedom stuff is hard. Libertarians seem like tools because they are willing to truly honor freedom and trust people, where most only talk of the concept while feeling much more comfortable with control. We have never really tried liberty. It's like running without staring at your feet to make sure they are doing it right. We might trip, so we never really find out what we are capable of good or bad.

I get a bit tired of people suggesting "racism" as a motivation--something that cannot be disproved--when commitment to principle is enough. One might flip the argument around and say Althouse puts her "true-belief" in equality over the very real concept of freedom. How can Althouse not be sure she isn't a fascist?

See how idiotic this argument becomes? We're all true-believers in some political principle or another, even if that principle is expedience. To be scared by it is to be irrational. It's part of the human condition. Get over it.

No different than a "black students only" field trip at an Ann Arbor elementary school.

No, that was a public (government run) school -- so it is very different than legally allowing private businesses and organizations to discriminate.

A better example would be -- would it be OK, should it be legal for a non-profit founded by African Americans to offer after-school tutoring only for AA kids? OK, now suppose that same black-run organization were a for-profit tutoring business, should that make a difference? How would the 1964 civil rights act apply to these cases?

(BTW: People who don't really know Ann Arbor here a story and their eyes start rolling. It's worth pointing out that there was plenty of outrage here, too, about the program, and the district put an end to it pretty quickly when the story came out.)

The funny thing is that there's better reason to suspect Rand Paul of racism than there was for the people at the conference, considering how closely he's following in the footsteps of his father (who's been a publisher of racist writing).

In discussing this just now with my hubby, he made a very astute point.

The CRA was an attempted short cut to desegregation by law whereas if they had left it in the private sector, we would have naturally desegragated ourselves over time as people began to accept the equality of blacks and whites.

It would have taken more time but they tried to short circut it. He believes that it created a government imposed animus between the races.

Things take time and society takes time to change. It can't happen overnight and to force people to change their society created a chasm that might have gradually been healed.

Roe v Wade did the same thing. People were gradually coming to more acceptance of some level of abortion in society. But with the passage of Roe v Wade, we have created an adversarial position that devils our society today. Both fiscal (why do we have to pay for your abortion) and societal.

When government attempts to legislate social values....it always always fails and the unintended consequences are always bad.

@MarkW:A better example would be -- would it be OK, should it be legal for a non-profit founded by African Americans to offer after-school tutoring only for AA kids? OK, now suppose that same black-run organization were a for-profit tutoring business, should that make a difference? How would the 1964 civil rights act apply to these cases?

So if a White Supremacist group organizes as a non-profit dedicated to educating white kids after school in their "heritage," to make them advocates for their "race," then the CRA does not apply, and its OK?

Id love somebody to tell me how a total ban on abortion is libetarian..... thats gonna be some torturedlogic-cant wait. Isnt it abour keeping govt out of our lives?

He discussed this with O'Reilly last night. Standard pro-life argument. He's a doctor. Life begins at conception. You can't kill life.

I happen to be pro-choice, but he has the standard, principaled pro-life argument. I have a different libertarian argument, but that is not relevant here.

Even most libertarians don't want the gov't out of our lives when murder is involved (some do, but I think they are in the minority). If you think abortion is murder, then most libertarians would want the gov't involved.

Years ago, I worked in Chicago. There's a certain fried chicken chain that operates in that city and - in my observation of 3 or 4 of their stores - was staffed entirely by black people. I'm white.

I had two separate incidents at two separate stores where I was refused service by at least one of the employees there. Put simply, I was the only white person in line, and when my turn came the employee made eye contact with the person behind me, ignored me, and took their order. Neither was an "accident" or "mistake" - it was deliberate.

I'm glad they did this. You see, I don't want to give my money to racists who hate me for my skin color, and thankfully they're stupid enough to expose themselves.

So I understand Rand Paul's point.

I'm not going to act like I have anything in common with civil rights era blacks, for what I went through twice was a common occurrence for them and in some cases their options were limited. It was simple enough for me to go to another restaurant to eat in downtown Chicago. I have heard stories of families that had to walk for miles to get to a black-friendly grocery store in the South even though there were other stores closer by.

I'm a very staunch libertarian. But my feeling is that when people talk about this they're thinking of an experience somewhat like mine described above, when in fact the experience that many blacks had was far worse.

You can't possibly be worried about libertarians seizing power and then leaving you alone, can you?

The CRA'64 question is an easy one and even a moderate conservative talker like Michael Medved can accept the point.

Maybe if I state it as, "Should a lesbian bar be forced to serve men?" it would be easier to take.

I take it that you would not favor a requirement that prevents you from discriminating on the basis of race, creed, color, sex, age, alienage, previous condition of servitude, sexual or affectionate preference, Vietnam-era veteran status, etc. ad infintum in the selection of romantic partners -- so you do favor a right to discriminate.

Then we are only arguing over whether or not the right to discriminate (an aspect of the natural liberty) extends to employment and the conduct of private business.

This is not a radical proposition. It was universally accepted from the dawn of time up until 1964. Even in ancient tyrannies and totalitarian states.

At some point arguments become wishful thinking. Paul's argument is pseudo-legal reasoning because we know what the law is on this question: it's been passed by Congress and approved by the Supreme Court, and the law of the land for nearly 50 years.

Why can't Rand Paul just answer the question?

Do you support or oppose the Civil Rights Act? Yes or no.

Nice tag team. Paul is talking about the law because he is being asked "gotcha" questions about it. He's been pretty clear about which parts he feels are good and which he feels are bad.

Most candidates, the ones who actually oppose racism, would reject this support and distance themselves from the racists.

So you're suggesting then that Barack Obama is a racist (and anti-Semite) because he used the support of Jeremiah Wright (and Rashid Khalidi, etc.) in his Illinois poltical career, and kept going back to listen to those hateful sermons, week after week?

Brian, your example tries to draw an equivalence between a black organization tutoring black kids and a white supremacist organization teaching white kids to be racists. Not fair.

If a white supremacist organization were to offer tutoring to white kids only, I guarantee that not many white families would put their kids in the program, out of fear that their kids would pick up some bad ideas.

" the extreme ones are missing something that is needed if you are to be trusted with power. "

That's the point Ann, though. The IDEAS are ideas that Libertarians believe will allow people in government to the trusted with power.

If the libertarian idea is "leave people alone" you would think that that would mean they could be trusted with power. But you want them to be willing to use some extra power to right a wrong. Why not right a wrong of hate speech too?

I was struck by Professor Althouse's rejoined to the libertarians at the convention to explain/convince her that their opposition to an abstraction was not rooted in racism.

Precisely how does one do that?

Isnt rather like the Professor's banning the use of the "n word" on her blog but permitting the use other racial/cultural slurs. She's made her case for it (BANNING)but has she made a convincing case? I recognize we are talking about free speech versus commerce, so my hypo may not be appropriate.

Given Pauls devotion to the concept of enumerated powers I wonder.how he could argue property rights have a Constitutional stature similar to free speech. After all, the founders chose not to draw this equivalency themselves.

Beyond the problematic Rand Paul, I heartily agree with Ann's excellent point about "true believers". It seems to me that the common thread running through the lessons history teaches about perverse ideologies and tyranny is always that true believers willing to defend the hypothetical extremes of their thoughts are the cause of the problems.

In other words, are you not asking for the impossible? How does one prove the things that only exist in one's own head?

Professor Althouse is asking you to demonstrate a negative, which is usually difficult and often impossible (e.g., prove that Santa Claus doesn't exist). This is why our criminal justice system places the burden of proof on the affirmative case (i.e., the state must prove you committed the crime; you don't have to prove you didn't commit it).

Don't let people sucker you into proving a negative. If you agree to those terms, you'll lose the debate before it starts.

Althouse played the ultimate trump card. Simply ask, "How do I know you're not racist?" and you win the argument.

And the prescribed "correct answer":

And I agree with you that we should examine our philosophical beliefs to try to understand what emotional needs they may fulfill for us.

... touchy-feely though it may be, still places the burden on the accused to "talk it out" and admit to being racist. The implication is that certain people have to prove themselves to liberals, who always, nauseatingly, claim to hold the high ground on racism. It's insulting.

It strikes me as important that it would have been very easy for Paul to simply answer, "Sure, I would have voted for the CRA. Absolutely." Politically, this would have been the correct thing - and lying, principle-free douchebags like Barack Obama give this sort of facile answer all the time, as in, "No, I never heard Rev. Wright say anything bad about Whitey or the USA."

But Paul doesn't do this. Impressive to see a politician not give the Joe Trippi-accredited talking-point and actually answer a question.

If a white supremacist organization were to offer tutoring to white kids only, I guarantee that not many white families would put their kids in the program, out of fear that their kids would pick up some bad ideas.

Point taken, it was not a good example. It would be more apropos: A non-profit sets up a tutoring program to teach poor white kids after school. They only teach poor white kids because there are other non-profits with programs available for African-Americans, so they deliberately don't admit black kids.

Is this OK? There's no evil for-profit motive.

@DBQ:

Yeah, what if the non-profit is organized by the Black Panthers to teach poor AA kids that their economic condition is entirely a product of racism by whites, and therefore they need to organize themselves, be militant and oppose, harass, belittle, and otherwise treat whites in positions of power as illegitimate.

A few years ago, I was at a conference with libertarians, and I was confronted with exactly this point of view. I expressed my concern that they were putting an extreme and abstract idea above things that really matter in the world.

That seems to be the core of your argument. You don't attempt to make the argument that the CRA is constitutional, because clearly, it is not. Instead you claim that the CRA should be the law of the land, because of things which "really matter in the world". This was a remakably weak and poorly reasoned post. I bet you'd flunk a student for writing it.

It seems like just yesterday Republicans were giggling at Ron Paul being called on at the debates, and Guiliani was the next Ronald Reagan on his way to the GOP nomination. Then he couldn't even buy a delegate, his best friend is in prison, and the fruit of Uncle Fester's loins is the rising star.

I would prefer that people be free to choose to be racist in their own restaurant - their own property. I think forced goodness is no goodness.

But because historically, those same people were racist in executive and administrative positions of local governments and on juries which is intolerable - I am OK with the fact that the federal government pounded them down in their own restaurant.

It's entirely possible to hold libertarian views about states' rights and private property rights while also recognizing that certain issues a transcendent.

With regard to the CRA, the philosophical (and political) question then becomes: which is more vital - defending states' rights and individual property rights, or that we become at last a nation in which all citizens are equal under the law?

I've never heard a Libertarian seriously suggest that some citizens should have less standing under the law than others.

If NPR had asked me that question, I would have said, "Yes, I would have voted for it because a nation demeans itself by perpetuating a system in which their are two, unequal, classes of citizens."

Getting beyond libertarian myopia, there is a bigger issue here with this story.

Rand Paul made a comment about civil rights laws that I have heard Michael Medved and other conservative pundits make (balancing freedom, government intervention, and offensive behavior). There is no easy answer to this (and Rand Paul’s answer is not invalid and certainly not racist, even if you disagree with it). I give Rand credit for being honest, even if I do not agree with him about this particular statute.

As Jeff Goldstein has been noting at Protein Wisdom, this is what the left does, it sets up its opponents to be labled racists or worse. A few on the right practice it too, but by far it is a practice of the left.

Funny how this all broke right after Rand Paul wins the GOP primary. I am sure that is just a coincidence.

"I'm certainly not saying he's a racist, but he seems to support a legal position that would place racist private businesses beyond the power of anti-discrimination statutes. "

As long as it is FEDERAL anti-discrimination statutes, what's the problem? I would leave such to the Several States and neuter the Federal enforcement of most everything beyond DoD and the Post Office.

Why doesn't anyone ask Democrat candidates if they would support the Ku Klux Klan, the Japanese internment camps, or the Jim Crow laws, all of which were started by Democrats? Why are Republicans singled out as possible racists, when, overwhelmingly, Republicans have a much better history on civil rights than Democrats?

But to Rand Paul:

According to Wikipedia, his first name is Randal. He apparently wound up in Kentucky after marrying a woman from western Kentucky. Bowling Green is the 4th largest city in KY, with the huge population of 50,000. It's south of Mammoth Cave and north of Nashville, and is where Corvettes are made.

Even though his father is fairly famous, and Rand Paul has been involved in the Kentucky Taxpayers Union since 1994, he hasn't run for political office before. I suspect some of the awkwardness of his answers--or the excessively philosophical position-- may be due to the deference that doctors receive, especially in smaller cities. They can say almost anything and hardly get an argument, at least from non-physicians; or if a different point of view is offered, it is done very politely.

Those who believe that things would have desegregated due to peer pressure, boycotts, etc.--no way. I'm from about the most upper part of the Upper South. When integration became law, the town (overwhelmingly Democrat, by the way) closed the public pool rather than deal with mixing black kids and whites. Peer pressure would have kept nearly everyone going along with the status quo. Even Jimmy Carter went along with the all-white policy of his church until forced to make a stand when a black man tried to join.

But even though there has been integration in public accommodations, there continue to be clubs, lodges, etc that have restrictions based on race, religion, or sex. Some of them have the best facilities in town for meetings or eating. This is not just in the South.

But the "private club" is not just used for racial purposes. In Kentucky, people can get around the laws against alcohol in dry counties by declaring a party or meeting to be a "private club" and serving alcohol anyway, but they aren't supposed to sell it.

Which brings up a funny but barely related memory. A couple of years ago, I was in Lexington right before Christmas. I saw two women who members of the Red Hats Society, in full red and purple regalia, ringing bells by a Salvation Army kettle--in front of the Liquor Barn.

"I think that we should try to do everything we can to allow for people with disabilities and handicaps. You know, we do it in our office with wheelchair ramps and things like that. I think if you have a two-story office and you hire someone who's handicapped, it might be reasonable to let him have an office on the first floor rather than the government saying you have to have a $100,000 elevator."

So is his argument originally based on animosity toward the handicapped, or employer rights? (And yes, I admit that's somewhat apples and oranges, but still applicable)

The issue Paul is touching on - in my mind - is how does one really prove they are not hiring based on color? NASCAR is lily white. Is that because there are barriers to entry for blacks, or no interest by blacks to work there. Reverse that to the NBA or NFL.

One could argue that laws which regulate who someone can or can't hire allow for implied (or justified) accusations of discrimination based on the outcome of hiring choice, more so than whether the person was qualified or desirable. Which thus damages or constrains the original hiring decision.

DBQ, I see your point. Sure, there are black organizations out there who have a professional chip on their collective shoulder. Sure, they pass those odious ideas on to young people. I don't like that though it shouldn't be illegal to do that.

Brian's second example of a white organization offering special help to poor white children is excellent. That should also be legal, of course. The trouble is that--IF a program like that were ever allowed to see the light of day--white people would probably avoid the program because of a fear that it has racist aims. White people do not want to be seen as racist. The idea that black children need special help to overcome their background (their blackness?) that both white and black people support these programs all the time.

An Omaha school has a program in which black men come to the school to read to the children. Would white men be allowed to do the same? I don't know, but suspect that they would be turned away because, you know, black kids would never see white men as role models. White and black people both buy this idea.

I believe that any law against discrimination should apply to anyone on a State, Fed Government level including the Private Sector as most people get hired most jobs are created in the Private Sector... it needs to reflect what our Nation is ... diverse... wow...why do you think so many Affirmative Action programs were put in place? unfortunately there were a lot of people who agreed with Rand ... so the need to even the playing field was imperative...The Private Sector is where the jobs are ... and for Rand to suggest the Private Sector should have the right to practice racism legally is absurdhe is the face of what i don't want in Public Service or Political Office

Under NAACP vs. Alabama and Boy Scouts of America vs. Dale freedom of association was established for private organizations under both the First and Fourteenth amendments (mostly the First for this discussion.) The main reason was not property rights but association for the purpose of speech which might be impaired by being forced to associate with those who are opposed to the type of speech advocated by the private organizations.

Libertarians of all stripes hold that there is an absolute right to associate with others who hold similar values and extend this to businesses who want to discriminate on any basis. The law and the courts don't support this position.

The CRA makes certain types of discrimination a criminal act subject to both criminal and civil action and punishments. So far the Supreme Court has upheld the law.

This makes Rand Paul's position one of philosophy, not law. In order to change the law/constitution it would have to be repealed or amended. I suppose he could run on this (and he seems to be doing so) but he will have to run the same gauntlet that Barry Goldwater did in 1964 which may or may not be a good choice for him.

I doubt that Rand Paul is "racist" in the sense of the KKK and I tend to believe him when he says he is not a racist. He is a true believer, however, and that may not be the quality to have in a Senator. The voters of Kentucky will have to decide that.

In the mean time Jack Conway has a great wedge issue to use in his campaign.

I'm certainly not saying he's a racist, but he seems to support a legal position that would place racist private businesses beyond the power of anti-discrimination statutes.

I think this misses the implicit underlying reality of our economic and cultural society. The stigma (for whites, especially) attached to attending a "whites only" restaurant would be so damaging to most individual's reputations that it simply would not be worth doing so, even if one legally could. We have cities conducting boycotts against each other over enforcement of Fed immigration laws- imagine the boycotts that would take place if race-specific businesses existed. And it's a misunderstanding of basic capitalism to simply think that the "restaurant" stands alone in doing businesses (and hence, determing its rational choices): the restaurant only functions because of suppliers and banks- most of which wouldn't even consider sticking their necks out for a race-specific business and suffering their own, and larger, economic harm.

And wouldn't reporters be snapping up pictures outside the whites-only restaurany of everybody going inside, and showing that all over the news, TV, etc. so that everybody in the country would know?

And this parallels the free speech argument in many ways- just because some extreme is available, whether it be the communist party, the KKK, or the Black Panthers, does not mean that most people will join those groups. Still, that doesn't mean that they should be outlawed, or that the actions of their members should be prohibited, as long as they are legally allowable under the 1A.

Isn't there at least an argument that discrimination based on race is as harmful as getting salmonella poisoning?

Are you serious?

If a restaurant is known for poisoning people, then people will not patronize the restaurant and it goes out of business.

If a restaurant refuses service to people and the people in the community don't like it because they recognize the inequality, they will not patronize the restaurant, boycott the restaurant and it goes out of business or changes its ways.

Killing people with samonella is not equivilant to not serving people.

Neither one is a good practice but they are not the same.

The government telling you how much salt you can have, how much sugar, what you can say, when you can say it and who you MUST associate with and who you must allow to be in your Boy Scout Club or golfing association are all intrusions into personal freedoms.

Society will gradually change and recognize the inequalities. This is what societies do. You can't legislate it. It won't work.

I expressed my concern that they were putting an extreme and abstract idea above things that really matter in the world.

So with the Patriot Act and Obamacare in the rear view mirror, does anyone think they can sustain the argument that concern with an intrusive federal government is a purely abstract concern? Can anyone who has attended as many Teaparty rallies as Althouse claim it is extreme?

I'd contend that just like racist shopkeepers, the overreach of the federal government is a "thing that really matters in life." Of course, the question that has to be answered is what matters more. Many libertarians are more focused than I in their concern for the overreach of the feds, but they have plenty of evidence on their side. I've seen racial attitudes change radically in my lifetime, but I've almost never seen the feds voluntarily give up power.

You are so close to the line of playing philosophical gotcha. That makes it an unbecoming post.

Simple: Belief in a person's right to free speech/property rights is NOT an endorsement of someone's actual speech.

That is completely logical and your philosophical question is a red herring that muddies the water.

In addition, let's not pretend that the line is so clear cut that someone's ideological belief clashes with "things that really matter in the world." So, is that the real discussion here? What do YOU think matters in this world... or, can we broaden it to include freedom/liberty, which Rand and many others value?

Under NAACP vs. Alabama and Boy Scouts of America vs. Dale freedom of association was established for private organizations under both the First and Fourteenth amendments (mostly the First for this discussion.)

Stop it. Freedom of association is established by the Constitution, not by whatever nonsense the SCOTUS dreams up.

I think responses like this are often a product of ignorance. Rand Paul has probably not thought this through very carefully. Reagan, for example, would not have made this mistake. He knew the constitution, knew the history and the civil rights laws, and had thought through the implications. It's not clear to me that Rand Paul and Sarah Palin approach the issues with the same level of thoughtfulness. This will hurt them in the longer run if they are as ignorant as they sometimes seen.

Fair points DBQ; however, I think some people posting here don't realize that before the 1960s there was no stigma to eating at a whites-only restaurant.

True there was more to change than legislating it; but it is a big deal to minority people when political leaders, through action and legislation, say to the haters, "this is not OK."

That is going on now with gay marriage; why has the tide turned so quickly? In part because the law is starting to change.

As far as salmonella, I know the analogy is imperfect as salmonella does not discriminate; but the point is that there is real mental damage to a person being discriminated against that is difficult to quantify, just as getting sick, throwing up and feeling bad is difficult to quantify. That doesn't mean there's no harm.

You picked a really bad year to bring up the argument that "what really matters in the world" is individual racist business owners rather than a rapacious federal government that wants to control our most intimate economic decisions.

I actually think this is a "really good year" to bring this up. The Tea Party and many others to the right of center (and the majority of Arizonans) have been accused of being racists. Obviously the claim can't be disproved no more than I can prove that you secretly lust after 6 year old girls.

And so WITHIN those to the right of center it could engender a conversation (as is happening here) as to what laws should be in place to allow equal OPPORTUNITY (not outcome). Personally, I agree with laws that state that I can't refuse service based solely on the color of your skin. I would however want the details of that law (and the tests of that law) "tight". I can't be a funny look, it can't be hunch on my part. It would have to be clear evidence ("We don't serve n**gers here")

Now as to the politics. Clearly those to the left of center will seize any opportunity to use the "racist card". But the response should be more than just a cry of "bullsh*t". And those who take a "pure" position should appreciate that it won't get many votes.

And because Allen's initial questions intrigue me, I will say:hate speech as a separate crime has been defined but I find those laws disturbing (and often, as disturbing as the speech itself)

Free speech seems self-evident. I believe the clearer question is what, if any, limits should there be on free speech?

both discrimination and affirmative action consider "other factors" in hiring etc. I will now contradict myself by saying that laws to establish affirmative action are no different than laws that sanction discrimination

In a restaurant open to the public, it is a social public good, like public health concerns, to prohibit discrimination based on race and other odious classifications.

It may be a public good. Lets assume for the sake of argment that it is a public good. It remains the reality that the US Constitution cannot be construed so as to grant the Federal government the authority to prohibit such discriminaton.

This is one of those many instances where liberals say, "The Constitution be hanged, we're doing to do what's right!"

Fair points DBQ; however, I think some people posting here don't realize that before the 1960s there was no stigma to eating at a whites-only restaurant.

I'm actually old enough to remember segregation and to have lived in the pre CRA south as a child. (Don't make me repeat my child's perception of the colored water fountain ...LOL)

Even then the society was gradually coming to the realization that segregation was evil and needed to be stopped. Music, television and education of the population were gradually frowning on the practice.

Where do you think the protesters of segregation came from? Mars? They came from society changing all on its very own.

When society changes voluntarily it becomes a permanent change. When society is forced by law or fiat....it may eventually permanently change but it will not be a peaceful transition.

Libertarians of all stripes hold that there is an absolute right to associate with others who hold similar values and extend this to businesses who want to discriminate on any basis. The law and the courts don't support this position.

The Constitution does support that position, which makes the law and the courts (is there supposed to be a difference?) wrong.

So, where is this bright line between free speech and property rights? Burning a flag is speech. Is not serving someone speech? Is there a consistent and clear SCOTUS definition on every action?

I am sure I read similar cases in Con law class, but they elude me right now. It also probably eludes many people who do not read/research/write about them every day, so let us cut Rand some constitutional slack in a not so clear or settled area of the law.

"(As to federalism, there was an argument, rejected long ago by the Supreme Court, that the Constitution did not empower Congress to regulate in this area.)"

Ah yes, the appeal to SCOTUS as the final arbiter of what's good and true. Why just the other, Ann was suggesting how smart and insightful the Dred Scott and Plessy decisions were. Right? Oh wait a minute, did I just use an example where 5 out of 9 people screwed the pooch, but I should willingly accept every other decision as handed down from the Almighty?

I'm not even a libertarian (an ugly conservative), but I find Ann's "logic" about that group to be the product of working backwards from her own personal opinions and biases, rather than working forwards from, you know, reality. But hey, whatever works for her.

in what I thought was a friendly conversation — to explain to me how I could know that their commitment to the extreme abstraction did not, in fact, have an origin in racism.

You deserved a sharp negative response to that question.

As a libertarian conservative, I cannot tell you how tired I am of the veiled and not so veiled accusations of racism if you oppose the left's government imposed social engineering limiting freedom of association.

There is no intellectually consistent way to enforce the freedom to engage in morally abhorrent speech while abridging the same morally abhorrent associations.

Likewise, if one supports out of principle the freedom to engage in morally abhorrent speech and not be called a racist, etc, then one should be able to support out of principle the same morally abhorrent associations without being labelled a racist, etc.

I am thrilled that we have a candidate for Senate who unapologetically advances an agenda of freedom no matter how it upsets the conventional elite wisdom.

As to federalism, there was an argument, rejected long ago by the Supreme Court, that the Constitution did not empower Congress to regulate in this area.

Simply because the Court rules on something does not mean it's (the Court) right. The Court's decisions are based on politics and agenda as much as anything else and, very often, expanding the role of government. A disinterested organization, it is not.

I challenged them — in what I thought was a friendly conversation — to explain to me how I could know that their commitment to the extreme abstraction did not, in fact, have an origin in racism.

What gave you the right to ask? You make an assumption totally unwarranted, which is how the Feds operate all the time (the appearance of impropriety, I believe it's called). I realize you wished to pose an hypothetical, but you illustrate why so many miscarriages of justice occur at the hands of government officials looking for new fields to conquer - not unlike Joe Stalin's commissars who had to bring in so many traitors from their block every week.

AlphaLiberal said...

White Supremacists heart Rand Paul.

Unless he says he hearts them, I'd worry more about why The Zero won't return the donations from GS and why he's still inviting them to fund raisers.

I would say this too. On O'Reilly, Paul stated his opposition to abortion directly, without hesitation. He knows that will lose him many votes, yet he did not "couch" his terms to try to minimize it.

Take a look at his website. He's very active in the Lions who have traditionally given aid to the visually handicapped and blind. Helen Keller called us Knights of the Blind.

He's been President of his club and awarded the Melvin Jones award (which I'm proud to have too). This tells you that he puts his money where his mouth is. He doesn't just talk about personal works vs. gov't action. He personally voluteers time, money and effort for those less fortunate.

Why should he have to prove he's not a racist? Shouldn't we start making the accusers produce FACTS first?

People have the right to be discerning about their friends in private life. How is it different if they are discerning about their customers/clients in PRIVATE life? People have the right to be what is called "racist" in PRIVATE life. Would you force PRIVATE citizens to socialize with people they don't like? Would you force PRIVATE citizens to socialize with people they don't like on the basis of race?

Private is private. People have the right to be/think/do what they want in private--even if it's "racist"...even if it's what some might call "evil". We have the right to be total A-holes in private. Who I spend time with or sell my services to is none of anyone's business.

If the Warren Court decided some things, is that supposed to make everyone back off? Pffft....

Freedom is a scary thing. You have to let other people do what they want, even if what they want isn't what "really matters" to you. The State wasn't established to determine what is right and what is wrong, what "matters" and what does not. The idea behind the right of Conscience is that you get to decide those things for yourself, and its sad that so many people of every political stripe try to justify using the State to bully poeple on the things THEY feel "really matter" .

When someone uses force to make another do something they would not choose for themselves - you know that person has lost their freedom - in a very real and very practical sense. No one should be allowed to harm or bully another person, and that is the primary reason we have a government - to deter such actions - not become the agent of them.

So the question becomes one of if making personal decisions on personal criteria involving personal property and effort causes harm or force to be applied to another person. The argument always comes down to one of "hurt feelings" - and "hurt feelings" are an important part of any fuctionaing society. If you behavior is unacceptable to most, and they decide to shun you based on your behavior, your feelings might be hurt - and you might just start acting more acceptably as well. Instead of allowing this primary mover of social interaction to work ( see Ben Franklin's essay on the value of Censure) we have moved into an era where ANOTHER PERSON'S reaction - something beyond your control, his hurt feelings, becomes sufficent to convict you of a crime.

You might not treat someone with respect, and you might even do so out of an irrational predjudice like racism, but making that a thought crime, allows that to become the accusation when the motives are quite different.

"Sticks and stones may break your bones - but ONLY YOU CAN CHOOSE TO BE HURT BY YOUR FEELINGS" If everyone is entitled to respect and has a right to never be offended- then no one has a right to their own opinion - unless its the State Sactioned one. Right now its state sanctioned that you may not express a negative opinion in regards to someone's race by depriving them of the use of your services - and Its no different than having a State Sactioned rule that denies the right to provide them with your services.

DBQ: "The CRA was an attempted short cut to desegregation by law whereas if they had left it in the private sector, we would have naturally desegragated ourselves over time as people began to accept the equality of blacks and whites."

As someone who grew up in the South and can remember "White" and "Colored" signs, blacks being required to sit in the back of the bus and excluded entering restaurants, hotels and recreational facilities, I can assure you that this is an absurd statement.

I dunno, keep reading the 1st Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances" and not finding an "except for business owners" clause. Funny how no one is opposed to minority-only accommodations like the Gates Scholarships. All the sophistry notwithstanding, Paul's crime is being a white male in a neo-apartheid shi*hole of a country.

Please show me the text of the Constitution that supports that statement and I will show you the text that allows SCOTUS to "dream things up."

"freedom of association" is not in the text of the Constitution.

I think you're assuming that we only have whatever rights are explicitly granted to us in the Constitution, and that the goverment may do anything and everything else.

That's not the way it works. The Constitution is a check on government power. Any power not granted to it is forbidden it. The Constitution does not grant the goverment the power to infringe on our freedom of association. It is not necessary for "freedom of association" to be mentioned in the text of the Constitution for us to have it.

The CRA did not do us any favors--it introduced government coercion to force people who didn't like blacks to patronize them. They would have gone out of business, been socially marginalized, and made examples of.

The free market had a century in which to right a tremendous wrong, and it failed. One hundred years was long enough.

"I challenged them — in what I thought was a friendly conversation — to explain to me how I could know that their commitment to the extreme abstraction did not, in fact, have an origin in racism."

Ummm...no offense Ms. Althouse, but isn't that kind of like asking, in friendly kind of way, how I can know that you don't get a thrill out of burning puppies alive? I mean fundamentally, absent any evidence of a moral failing, there ought to be some presumption of goodwill. Moreover, an argument ought to stand on its own merits. In that respect, your response to the libertarian argument does you a diasservice.

Ffft. I thought then that you suffer from a bad case of status anxiety, and I still say that your obsession with anti-racial bona fides is rooted in status anxiety. Veblen would be proud.

And yes, I would have voted against the Fourteenth Amendment as drafted - it's easily the most politicized and least worthy amendment on the books, barring perhaps the Twenty-Fifth. It is badly mangled by the political needs of the Republican caucus of the late 1860s, and has badly distorted constitutional developments since then. It opened the door for Progressives to undermine and partially demolish consistent constitutional interpretation, and is at the root of "the living constitution" and anti-federalism in general. But, with the 14th in place and given the situation in 1964 I'd probably have vote for the CRA. But its continued burden upon the states of the southeast is repugnant, discriminatory, and archaic.

I mean, I'm sure you don't just assume you're not a racist in some way, maybe completely unconscious.

Oh, good god, are you going to be comfortable in your own skin at some point in your life before you find yourself in the cold ground? Life is short, endless self-flagellation stinks of perverse pride and masochism.

Ten years ago I had hope that post-millennial generations would not have to pause and consider what race they and their audience might belong to before saying anything - weighing only the merits. What a fool I was!

knox "They still need to prove to her satisfaction that they are not racist!!"

Again, I have never demanded that they prove that they are not racist. You need to see the distinction between that and what I said would satisfy me, which is simply an acknowledgment that people are drawn to political philosophies for ideas that include emotion and that the burdens imposed on others by the exercise of one's freedom need to be taken seriously. Too much abstraction is cold and inhuman, and you might get things terribly wrong if you don't realize that.

In a parallel situation, some people criticize Israel's treatment of the Palestinians on humanitarian grounds and some people criticize Israel's treatment of the Palestinians because they're anti-Semitic and they relish a chance to criticize Israel. How does the first group differentiate itself from the second?

Ann's comment feels like one of those 60's hangover things. I really don't know how many people want to go back to Jim Crow and the like, but I suspect it's very few (for either the public or private domain). For myself the obsession with race and civil rights reminds me of folks who came of age in the sixties identifying with the Vietnam War as the signature issue of their life. Life moves on and things change.

I would like to have some politician answer what are the limits of federal government without having to first characterize their propensity for thought crimes. Personally, I feel Ann over reacted to her libertarian discussions a year or two ago. Although she may have been looking for philosophical reassurances, the simple exercise of responding with the stereotypical "I am not a crook." type response sometimes seems to validate the accusation on the part of third party observers.

The only difference between the socialist paradise American socialists are preparing for us and the National Socialist paradise is that the signs over our camp entrances will be the American version of Arbeit Macht Frei: Celebrate Diversity.

Umm, so you politely, in a friendly manner, accuse people of being racist and you are "struck" that you were loudly denounced? The accusation of racism is not one that can be tossed around lightly, and everyone knows that. What is being denounced is the inability to have a discussion about how best to deal with bigotry and racism, and the proper roll of government regarding racism, without being accused of being racist. It should be no surprise that this offends people. Just out of curiosity, should the government force the NFL to have an equal number of women players, (or small players, for that matter)? Is this not sexism? BE CONSISTENT in your reply to this and Rand Paul's comments.

As someone who grew up in the South and can remember "White" and "Colored" signs, blacks being required to sit in the back of the bus and excluded entering restaurants, hotels and recreational facilities, I can assure you that this is an absurd statement.

As someone who ALSO grew up ** and lived in the segregated South and can remember all of those things too, I can assure you that it is not an absurd statement.

Back atcha.

** My father was born in New Orleans and my Mother in St Louis. Most of my relatives lived/still live in the South. My parents couldn't take living in Mississipi (where my childhood memories of segregation occur)for a lot of reasons, segregation being one of them and we moved away.

As I said. Where do you think the anti segregation protesters came from? Not from Mars. They came from our own people who saw the wrong and were convincing others that it needed to change.

Society WAS changing. Just not as fast as some people wanted. So they artifically forced change through societal engineering laws.

"to explain to me how I could know that their commitment to the extreme abstraction did not, in fact, have an origin in racism. Which came first, the proud defense of private property or the shameful prejudices that polite people don't admit to anymore?"

Which came first; the public, politicians, and government violating my right to privacy and free association in my health care purchases and choices... or the civil rights act?

I'm going to pull away from conservatives (being a libertarian) and remind everyone the right to privacy was talked about by courts before Roe.... and it explicitly did speak about property rights. The progressives have redefined it down to not include them... and they've used issues like the civil rights act to expand state power... which in turn is being used in news ways.. against us and our freedom.... Considering the other progressive attempts (via other issues) to do this; it doesn't take a cynic to wonder if that was most of the point for the far left to support the act... just like they've been pushing to take over healthcare since the 40s... they’d been looking for a way to expand the reach of the state, in order to have a more collectivized society, since before then (hey, we planned in war!).

"Presidentay Caldeerone said today that Arizona's defense of its own border amounts to racial profiling..."

Yeah, it's OT, but it pisses me off.

When Mexican Presidents are able to turn their country into something their citizens don't want to flee by the hundreds of thousands annually, only then should they even think about hurling stones to the north.

And I didn't "accuse" anyone of racism. I challenged them to talk about why they believe what they believed. Basically, I was giving them a chance to explain the charm of their political philosophy, which was coming across as rather repellent. They responded by getting very belligerent.

I need to know why people believe the things they do. We are human beings living in the world. People who want to argue in abstractions make me suspicious. I have too much experience dealing with abstract arguments to sit around for hours listening to the sort of assertions libertarians made -- with a very smug superior attitude that seemed cold and inhuman to me. I wanted to give them a chance to speak to me at the level I needed -- connected to the real world of human life. They refused. Adamantly. That meant *a lot.*

I had had a lot of experience dealing with the way lefties make their arguments and have long had good instincts about where their bullshit is. That experience with libertarians heightened my instincts about extreme libertarians. I might have been able to think of myself as a libertarian if I hadn't had that contact with them.

Agree with Roger J, I'm more interested In Ann's thinking than Paul's. He's a politician. Regardless of anybody's desire for ideological purity, impugning the CRA (even if by proxy) is not the way to get elected in the US. This is settled law like Roe v Wade (which I believe was also a poorly reasoned decision). However, as my personal interest is in individual reasoning, I'm still curious "why you, a constitutional law professor" would require the prerequisite "Not that there is anything wrong with that", before engaging in a discussion with someone on the merits of their opinion.

Late comment posted after Ann and Roger J comments. As part of the responses seemed to proceed from "gut" assumptions, I'll offer mine. It seems to me the original comment was predicated on addressing closely held individual fears and beliefs rather than a discussion between equals with differing views. Not that there's anything wrong with that.

The question of the day should not be whether Rand Paul has thought out his categories just right to preserve liberty. The question needs to be why all of us usual allies are at each others throats about a non-issue. Paul's talent in raising this fight over nothing is the essence of the Ron and Rand Paul show. Americans do not hate our cousins of African ancestry, so why must we argue forever about our right to freely offend them and thereby instigate among ourselves a sharp division between the Good Whites who love liberty and the Bad Whites who favor harmony among the individuals within our racial melting pot. This is the essence of Ron and Rand Paul's magic: they can capture men's minds within disasterous sly divisions, all the while innocently making there act sound like plain common sense righteousness. The Democrats must be loving every moment watching their poison work its way into the soul of the Tea Party Movement.

And I didn't "accuse" anyone of racism. I challenged them to talk about why they believe what they believed.

C'mon now Ann. Would you have asked a meeting of the ACLU to explain to you how I could know that their commitment to the extreme abstraction of free speech for Nazis and Klansmen, in fact, did not have an origin in racism?

It is my experience that these sort of not so veiled accusations of racism are reserved for those of us who believe in individual liberty for all the people under all conditions where they are not harming others, not just when it is politically correct among progressives.

Again, this is a lefty shiny object, a red herring meant to distract voters from the essential question (Do you accept a socialist takeopver of the USA? If yes, vote D, if no, vote TEA).

It's bullshit, and it works quite often; decrying the immoral destruction of liberty that no one (or but a tiny few) actually practices or defends, to avoid discussing the actual destruction of liberty being dumped upon us.

trad guy--In this particular case I, like night2night I think, am more interested in the narrow structure of the arguments--as I said, I take Professor Althouse's assertion re extremism as totally valid--History it seems to me bears that out at least from the new model army, thru the french revolution forward on both the left and the right.

I was just getting on her case about the requirement to convince her re racism.

I think all races are equal before God. That made it incredibly shameful that our Constitution said all men are equal, but yet allowed slavery.

The Bible, which the Founding Fathers had all read, even if some were deists or agnostics, says that "before God there is no male nor female, no Jew nor Greek, no free nor slave"; in other words, we are all God's children regardless of sex, race or social status.

That being said, I also think if you believe in the intent of the Constitution, then you must support the rights of property owners. That means if a gay business ONLY wants to cater to gays, or a drunken redneck wants to allow smoking or a Mormon doesn't want to admit Presbyterians - then they do have that right. And the rest of us have the right to boycott said business.

On the other hand, I can also understand that for historical reasons there may have been a need for a temporary measure such as the Civil Rights Act or affirmative action. There was so MUCH institutional racism back then that it might have taken generations to overcome.

I think in today's society, any business that discriminated against blacks would be boycotted by about 95% of the population. So I think today we can talk about getting rid of things like affirmative action and the Civil Rights Act, and we know that very few people would end up discriminating against blacks,andthe ones who did would face social censure.

Ann, what you should understand about Libertarians is that we believe in freedom, and that includes the freedom to do things that people should not do, as long as you don't infringe on other people's rights.

A business owner who excludes potential customers for an arbitrary reason like race creates an opportunity for a competitor.

The Bible, which the Founding Fathers had all read, even if some were deists or agnostics, says that "before God there is no male nor female, no Jew nor Greek, no free nor slave"; in other words, we are all God's children regardless of sex, race or social status.

OMG! Now you've done it.

We have to bring up the Bible and argue about all the instances of slavery in the Bible and the times when it was referenced as a normal thing.

Besides which....you didn't cite where in the Bible your quote came from.

But Ann, how do I know that your support of these laws is not done out of racism? Being a white person, the existence of these laws gives you a sense of superiority and power. No one passes laws with the intention of protecting you. You, as a white person, are the superior person. You don't need the government to protect you, except maybe as a woman. It is black people who need protection. And in that sense these laws reenforce the paternal white supremacy left over from Colonialism.

How are we to know that your support of these laws is nothing but a 21st century version of the "white man's burden". I see no reason to assume that you are not a paternal white supremacist.

Jim Crow laws were the state and local laws that the Civil Rights Act overturned, and that Rand Paul champions. The Civil Rights Act was proposed by Democratic President JFK, and championed by Democratic President LBJ. Democratic Senators Hubert Humphrey and Mike Mansfield led the effort to get the bill passed in the Senate, with the considerable help of Republican Senator Everett Dirksen.

A business owner who excludes potential customers for an arbitrary reason like race creates an opportunity for a competitor.

Just like a Chinese manufacturer who sells poisoned baby formula creates an opportunity for a competitor who doesn't poison babies. The self-correcting market eliminates all bad business owner behavior.

I expressed my concern that they were putting an extreme and abstract idea above things that really matter in the world. I challenged them — in what I thought was a friendly conversation — to explain to me how I could know that their commitment to the extreme abstraction did not, in fact, have an origin in racism.

I don't think there's a friendly way to ask someone to demonstrate they're not a racist.

Beyond that obvious truth, the line of comparison you draw with right to speech is odd to me.

Owning and disposing of your property is absolutely not an "abstraction". It's part and parcel of how folks operate in the real world, wheras free speech very often is an abstraction in the sense that it has no actual effect on anything.

But beyond all of that, why is free speech more worth protection than the right to use of your property as you see fit?